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supreme court historical society yearbook: 1980

 


A Report on the Reporter - "Double Revolving Peripatetic Nitpicker"

Paul R. Baier


(Editor's Note: Professor Paul R. Baier of Louisiana State University Law Center, who served as Judicial Fellow at the Supreme Court in 1975-76, conducted a television interview with Henry Putzel, jr., who retired in February, 1979 as the thirteenth Reporter of Decisions of the Supreme Court. At the time of Mr. Putzel's retirement, Chief Justice Warren E. Burger said in open court:

The work of the Reporter of Decisions is not known to the public but is of great importance to the courts, the legal profession and to the public. Mr. Putzel has performed the exacting duties of that important office with great distinction and in keeping with the tradition of the twelve men who preceded him in that position. The Court wishes to pay tribute to him and wish him well for the years ahead. (99 S.Ct. CLIV)

(For previous treatment of the work of the Reporter of Decisions, see Gerald T. Dunne's article, "Early Court Reporters," in Yearbook 1976 and the description of the office in Barrett McGurn's review of the officers of the Court in Yearbook 1979. The present article not only complements these earlier articles but advances two objectives of the Supreme Court Historical Society: informing the general reader, through the Yearbook and other SCHS publications, of little-known activities within the Supreme Court; and encouraging oral history recordings of such activities through interviews with persons responsible for them.

(The main title for this article comes from a description that Mr. Putzel himself gave, during the course of the interview, of the qualifications for and duties of the job he held for fifteen years. More sedately, the original video tape interview is entitled, "A Conversation with Mr. Henry Putzel, jr." It should go without saying that the printed version of an interview of this sort cannot project the important nuances of the spoken word and cannot, without losing the important off-the-cuff flavor, achieve the standards of grammar and accuracy that a Reporter would insist upon in a more formal context. The video tape and the transcript are copyrighted by Messrs. Baier and Putzel, and the following is reproduced by permission of the copyright owners. –W. F. S.)

Intro:

He labors unnoticed inside the world's loftiest judicial tribunal, the Supreme Court of the United States. Above his desk, as if to remind him of his celebrated lineage, hangs a portrait of William Cranch, John Marshall's Reporter of Decisions. His job is to catch errors in the Justices' opinions, to keep the United States Reports letter-perfect, and to write the syllabi in all of the Court's opinions. Volume 426 of the United States Reports is the fiftieth volume of official reports published under his painstaking care.

He is Mr. Henry Putzel, jr., thirteenth Reporter of Decisions of the Supreme Court of the United States.

Mr. Baier:

Mr. Putzel, I suppose it's true that most people would have no idea who you are, where you work, what you do, have any idea of who is Mr. Henry Putzel. Now, first, would you tell us what the Reporter of Decisions is?

Mr. Putzel:

Surely. But on your first question–I sometimes wonder, too, about my identity.

However, I think that perhaps I can clarify a little bit by reporting on the Reporter. I, as you indicated, am thirteenth Reporter of Decisions and it may be of interest to know that in the history of the Court, there have been 15 Chief Justices, but there have been only 13 Reporters of Decisions. If you get out your computer, I suppose this means great longevity. Now, I am not out to set any world records, by the way, but I have some illustrious predecessors and our function has changed over the years quite a bit.

In the early days the Reporters were in the courtroom and took down as best they could what the Court was handing down and gradually that changed somewhat.[1] The Reporters now have a more limited function, one that is, I think, no less important, but it's not quite the same as it used to be. And, primarily, we have the two functions of writing the syllabi or headnotes and making editorial changes–suggestions rather–to the Court.

Mr. Baier:

You have nothing to do with newspaper reporting?

Mr. Putzel:

No indeed. It's rather amusing. I have a letter, maybe I can just read you an excerpt from it here, that my predecessor Waiter Wyatt,[2] who was a very distinguished man–he used to be the General Counsel of the Federal Reserve Board and served as Reporter of Decisions for, I think, about 20 years, and he got irked at this confusion in the meaning of the word Reporter and he wrote this letter to the Chief Justice, who was then Fred M. Vinson. This was January 21, 1953. He said: "In order to avoid confusion and some embarrassment it is respectfully requested that in the United States Reports, the Congressional Directory and other official publications, I be permitted to list my title as Reporter of Decisions instead of merely as Reporter. From time to time I am plagued by letters and personal calls from people who think I am a stenographic court reporter or who desire either stenographic employment on my staff or to obtain transcripts of oral arguments. I have recently been informed"–I think this is what sparked the whole thing–"that a similar misunderstanding on the part of those charged with making the seating arrangements for the inauguration of President Eisenhower may have been partly responsible for the difficulties incurred in obtaining proper seating arrangements for the Reporter since one of them told the Marshal that he thought the Reporter was just a stenographer!" So that's how it came to be changed from Reporter to Reporter of Decisions.

Mr. Baier:

When you speak of the syllabi and the head-notes, they are attached to what? What are you synopsizing when you do your work?

Mr. Putzel:

Well, we're summarizing the opinions of the Court, which now we get in advance. Starting with the 1970 term of Court, the Court authorized that opinions be headnoted in advance. The purpose of this was to aid the press and I think it has performed that function rather admirably and we now see the opinions before they come down and the head-notes are written, submitted, and published when the opinion is issued in Court.

Mr. Baier:

Are they hard to write?[3]

Mr. Putzel:

Ha! Well, they vary considerably, and some of them are fiendishly hard to write and some of them are not so difficult. Some seem to fall into place very logically and easily. It's hard to generalize because even if you've looked at what looks like a simple headnote it doesn't mean that, the Reporter or his assistant–by the way, the Assistant Reporter[4] also helps with the headnotes and we divide them up. Both the Reporter and the Assistant have to be lawyers, of course.

Mr. Baier:

Felix Frankfurter has an essay entitled "Chief Justices I Have Known."[5] Well, you have known plenty of headnotes. Do you recall any in particular that were excruciatingly difficult to write?

Mr. Putzel:

Oh! I wish I'd had more time to prepare myself for that question because I'm sure if I had a chance to go back over the books I could find plenty of good illustrations. I remember the New Haven Inclusion Cases[6] as being one where factually there was great difficulty in trying to present the complicated railroad reorganization situation concisely. I believe it was in that one, it may have been another one of the railroad cases that took 6 pages of 9 point type to write the syllabus, but of course we try to make them as brief as we can[7] and the question is always one of judgment: What point is at the nub of the case, and you would have to assume certain things that are not–they may be quite important–but they are not what the case is primarily about. For example, a Justice might start off an opinion by referring to the fact that on a motion to dismiss the complaint the facts are taken as stated. Well, if that is just incidentally mentioned, it would not be headnoted, although it could become part of the headnote if it were the central or focal part of the case.[8]

Mr. Baier:

Does the headnote have a physical structure?

Mr. Putzel:

Surely it does and it is a format that I inherited; it's been in existence for a long time and it has certain set unwritten rules. The factual part is stated m one paragraph and the purpose of that is again not to get too discursive in the headnote, not to break it up; and even in a very long case where paragraphing ordinarily would be used, this holds the Reporter down as much as possible to limits and also you don't want–physically–you don't want to spread over more territory than you have to.[9]

The legal part–if there's one holding–will be stated right after the word "held" and then you will have subdivisions, perhaps (a), (b), and (c). If there are several holdings you will have an arabic numeral: Held 1, Held 2, and so on, and perhaps some letter designations under those. But we don't go beyond that. We don't have sub-divisions, again to keep the thing within bounds.

Mr. Baier:

Is your headnoting subject to the approval of the Justice–the author of the opinion?

Mr. Putzel:

It is and it isn't.[10] Sometimes Justices when they return the headnote to me make so-called "suggestions."[11] Of course, the Reporter is going to abide by the suggestions," but we emphasize, the Court emphasizes, that headnotes or syllabi are the work of the Reporter and not the official body of law. In Ohio, for example, the headnote is the law and not the opinion.[12] And perhaps there are some other states, I think, maybe, is it Kansas? or perhaps Kentucky, I'm not sure what the others are.[13]

Mr. Baier:

Ever have a case where a lawyer relied on one of your headnotes in his argument?

Mr. Putzel:

Ha! No, but this happened many years ago in a case, I think, in, oh yes, it's United States v. Detroit Lumber Co., in 200 U.S. 321; and at 337 of that old case, the Court mentions in its opinion that the headnote is the work of the Reporter not the Court. It has nothing official to it, but in that case the lawyer tried to argue that the headnote had some legal significance.[14]

Mr. Baier:

And got nowhere.

Mr. Putzel:

Got nowhere.

Mr. Baier:

Would you tell us what the requirements to become a Reporter of Decisions are?

Mr. Putzel:

Well, first of all, he has to be a lawyer. And I'd say he should be a word nut. And in the third place, I think he, well I think he should be a double revolving peripatetic nit-picker. We look over somebody's shoulders and we're always–

Mr. Baier:

What was that again?–"a double revolving–

Mr. Putzel:

Nit-picker!

Mr. Baier:

peripatetic nit-picker."

Mr. Putzel:

That's right.

Mr. Baler:

Mr. Putzel, how did you come to be the Reporter of Decisions?

Mr. Putzel:

Well, my name was brought to the attention–I had been the head of the Elections Section in the Civil Rights Division in the Justice Department, and I had for a long time been interested in both law and words and this combination, I think, was brought to the attention of Chief Justice Warren and my dossier seemed to fill the bill. I'll never forget an interview I had with him when he said in effect that he would not take this job on a bet. Well, he didn't, as most people don't, like dotting i's and crossing t's so much; and, naturally, it wouldn't appeal to him; but it did appeal to me and I have no regrets–in fact quite the contrary. I've loved what I have done. I'm certainly not going to do it forever, but I've been doing it for almost 15 years; that's probably almost long enough.

Mr. Baier:

Are you a word nut?

Mr. Putzel:

Yes I am, and maybe that's one of the reasons that I was recommended to Chief Justice Warren. I had as a hobby for a long time, words. I have quite a collection of them; and they are a lot of fun. I think that one of the big mistakes that English teachers make, perhaps at the grammar school level, is not to let their students in on the fun of words. After all, life is pretty much a matter of communication, isn't it?

Mr. Baier:

Yes.

Mr. Putzel:

We are always trying to persuade somebody or to convey emotions and that sort of thing. The only way we do it–well, it's not the only way–but our chief way of doing it is through words.

Mr. Baier:

You can smile, too, and you caught yourself.

Mr. Putzel:

Well, you know, we get into situations in the Court; it is rather amusing sometimes. The Court, like the rest of us, will use mod words and this, I think, has the effect sometimes of cheapening the currency of language. You use a word just because it is in fashion and it may not have anything to do with its real significance in the dictionary sense; and those are values that I think are worth preserving, at least as long as we can. Sometimes the fashionable, a merely fashionable word, will become good currency. But, take a word like "parameter." If you look at that word in the dictionary, I defy you to come up with a–well, to retain a definition in your mind as to what the word parameter really means.

Mr. Baier:

Have you fought with any of the Justices in an attempt to keep that word out of opinions?[15]

Mr. Putzel:

Well, I have. For a while I gave up, and then I found a great ally in Justice Blackmun, who jokingly told me one day that he had read the riot act to his colleagues and said he would not vote with them in any case where they used the word parameter. Well, parameter is supposed to mean,–and the reason it's used, I think the Pentagon probably started this, they use the word in the sense of perimeter or boundary. Well perimeter is a good word; so is boundary. Why not use them?

Mr. Baier:

You mentioned Justice Blackmun, and recently the sharp-eyed LSU Law Faculty–I'm putting in a plug for the school, Mr. Putzel,–caught a mistake, a mistake that involved the question whether an accused could be tried by a jury of less than six; and Justice Blackmun's opinion–it was not for the Court, but it was his opinion–made the point that in only three states could a jury of less than six convict, and he then enumerated the states, including, of all things we thought here, in this fine jurisdiction, Louisiana.[16] So whereupon we wrote a note and he responded very kindly that we had caught a mistake.

Now my question to you is, why didn't you catch the mistake?

Mr. Putzel:

Ah, well! I think–this may sound a little like confession and avoidance, or perhaps you'll say it's a frolic and detour, I don't know–but that case, as I recall, came down late in the term. I believe it was–

Mr. Baier:

March 21, 1978.

Mr. Putzel:

Well, not as late as I thought– Mr. Baler:

That's late enough though–

Mr. Putzel:

But it was late enough, and we have a sort of pecking order for opinions and we work on them as they come down. We have a staff of three who carefully go over the opinions to check all citations and quotations. That sort of thing almost certainly would have been caught, and the only thing I could say is that we had not gotten around to it yet by the time you had. This is not to say that we don't make our own bloopers. We do. And you may recall at the top of each preliminary print–let me just read you what it says here, and the same thing appears, well it appears at the top of the slip opinion and at the bottom of the preliminary print–it says that: "This preliminary print is subject to formal revision before the bound volume is published. Users are requested to notify the Reporter of Decisions"–with the address–"of any typographical or other formal errors in order that corrections may be made before the bound volume goes to press." Now we get a good deal of help from the public, from lay people, as well as from professional people. I remember once I received a letter from a convict in a southern penitentiary–as you know, some of them are great jailhouse lawyers–pointing out a mistake that no one else had caught.

Mr. Baier:

Did you respond?

Mr. Putzel:

Oh indeed, I did. I thanked him very much. And we had a–there was a law student at Yale who used to write me a three-page, single-spaced letter, after a preliminary print came out, pointing out all the errors in the opinions, and I encouraged this and it invariably happened that–I think he kept this preliminary print by his bedside and read it before he went to sleep. I can think that that would be a pretty good way of going to sleep sometimes!

Mr. Baler:

A good man, however, to have in the Reporter's office.

Mr. Putzel:

A good man, indeed he was, and again in-variably at least three or four times out of all those lines in his letter pointing out errors there would be something we had missed. We have a very small staff. There are only 10 in the whole office, including my secretary, a messenger, and various others. But there are only a few of us who bear down on these technical questions, so that it is very helpful to have people write in and tell us about errors in the opinions.

Mr. Baler:

Can you recall a few egregious errors that have been caught?

Mr. Putzel:

Again, that's the sort of thing where it would be nice if I had a chance to go through my files before trying to answer that. At the moment, I'm afraid I would just have to make a general reply and say that there have been several instances in which we have caught egregious errors and I have several letters in my files from Justices thanking us for keeping our noses to the grindstone.

Mr. Baler:

What kind of errors? Would they be errors per-mining to grammar, or spelling, or indeed the substance of the law?

Mr. Putzel:

It could be all of those, not so much substantive questions, although there is a grey area where sometimes you get into a substantive question.

Mr. Baler:

Do you correct the Justices' grammar?

Mr. Putzel:

Oh, indeed! There are occasions when we do this and even their spelling.[17] You're familiar, or maybe you aren't, with the correspondence that Holmes had with my predecessor's predecessor?

Mr. Baler:

Tell us about that.

Mr. Putzel:

Well, I was rummaging around some papers in my office, and just by a matter of serendipity– good word that–I came across a letter that Oliver Wendell Holmes had written to Mr. Knaebel,[18] who had corrected the spelling of the word "capital" and the spelling of the word "principle" in Holmes's opinion, and Holmes very amusingly in his own handwriting, which it took me quite a while to decipher, by the way, thanked the Reporter for having made these corrections and calling them to the Justice's attention. Here's the letter that I found. As I mentioned it took me a long time to decipher: "Dear Mr. Reporter," Holmes wrote," 'Principle' of course was a printer's error that I blush to have overlooked."–that's spelled "ple"–" 'Capitol' "–spelled with an

"was deliberate ignorance–but I see from the Century and my old stand-by Worcester"–our Librarian told us the Worcester was a very, very popular dictionary at the turn of the century; I hadn't heard of it before–"and my old stand-by Worcester that it should be Capital, which I never knew before and do a double blush. This is one of the few occasions," Holmes concluded, "on which I defer to the dictionaries." Isn't that nice?

Mr. Baier:

Yes.

Mr. Putzel:

Well, I had it framed, as a matter of fact, and it's in my office now; and we did a little detective work, we had to find out,–fortunately the letter is dated–and it wasn't too long before that that Holmes had written an opinion and we tracked it down. It was the case of Wear v. Kansas,[19] and we were able to find it in an old slip opinion where somebody, presumably the Reporter himself, had made the corrections in the printed version. So, in answer to your question, of course we do have quite a lot of spelling corrections and a good many grammar corrections. Our batting average on some of these things, some of my own, I guess, pet peeves, is sometimes good, sometimes isn't. There are certain words–now parameter, with the aid I have from the Justice, is very rarely used anymore.

Mr. Baier:

How about restrictive and non-restrictive clauses?

Mr. Putzel:

Oh Yes! Well I tried that, many years ago. The good writers maintain a distinction between "that" and "which"; "that" is restrictive, and "which" isn't. But even a good many of the very impressive writers do a little backsliding and don't observe that. I tried some years ago to get the Court to maintain this distinction in its opinions.[20] I remember Justice White, after I had put this campaign on, asked me one day, "What is the difference between 'that' and 'which' "–in effect saying "why are you being so fussy about this?" I tried to explain what the difference was; and, I think maybe I got the point across, but I found that later on none of the Justices really paid any attention to the distinction. As I say, most writers, however much they honor it in word, they don't in deed. And I finally just threw in the sponge.

Mr. Baier:

You mentioned Justice White. Does he communicate often with you about usage and grammar?

Mr. Putzel:

No, not really. I just happened to mention his name. He wrote me a note from the bench–I have to mention in a moment something about this practice of writing notes from the bench–and one day I was sitting in my office, and I got a note delivered by one of the messengers in which Justice White asked me what the word "suppletive" meant, as used in an opinion of Justice Harlan's. Well I looked in my records. I have a copy of my reply here. This whole thing really amused me because we had written to Justice Harlan at the time he used that word, as we do sometimes when we aren't sure whether perhaps a secretary hearing dictation hasn't misspelled something or somewhere along in the shuffle a word gets into print that shouldn't be, and we ask the Justice is this word intended. Well we had done that. In my letter to Justice 'White I said, "After receiving your note from the bench on December 7th"–this was 1976–"asking for the definition of 'suppletive' as used in Labine v. Vincent[21] certain smoldering memories were sparked and I took a look at the original copy of the opinion with our editorial suggestions to Mr. Justice Harlan. We had circled the word 'suppletive' and asked is this the word in-tended? The definitions in neither Webster's nor the O.E.D."–that's the Unabridged Oxford Dictionary–"seemed to fit. The reply was 'stet'– leave it as it is. After all these years our same observation holds. The definition in Webster's II is this: 'Characterized or constituting an instance of "suppletion" 'and 'suppletion' is defined as 'the occurrence of phonemically unrelated alimorphs of the same morphene whether the morphene is a base or an affix.' Please tell me what that means!"

Mr. Baier:

It's foreign to me, too, Mr. Putzel.

Mr. Putzel:

Well, I was amused at that because it was one instance in which we had singled out the word, couldn't find out what it meant and either Justice Harlan or his law clerk was satisfied that he knew what it meant, so there it was. Now it may turn out to be a–although I think I must have looked it up in Black's Law Dictionary, too, but I'm not sure–but it may be a civil law term or something of that sort. I couldn't find out.

Mr. Baier:

I assure you, we'll find out.

Mr. Putzel:

Good. This is the place to ask that.

Mr. Baier:

Do you enjoy being the reporter of Decisions?

Mr. Putzel:

Oh, indeed I do. I've done it now for almost 15 years. It has brought me into contact with some marvelous people. It gives an outlet for that idiosyncrasy I referred to when I said I was a word nut, and I've found it very, very rewarding. It's had its moments of trial as any calling does, particularly, I think, when we are asked to headnote a case at the eleventh hour, especially if it's a complicated case, it becomes a little trying, and I ask myself what am I doing here? Why do I have to go through this kind of pressure? And there are other times when going over the same material time and time again I've become a little impatient if not exhausted. We go through quite a refining process. We get the bench copy, the slip opinion, and we go through that very carefully when we've already read the opinion probably several times for the purpose of headnoting it, and then we make editorial suggestions after the slip copy is issued, and then after that, we go over everything again. We read the preliminary prints very carefully and still make additional suggestions for editorial change.

Mr. Baier:

And ultimately it comes to the official United States Reports.

Mr. Putzel:

Ultimately it comes into the bound volume and even there the final word isn't on the printed page in immutable form always. We hope it is, but once in a long time an error has to be corrected and we have to get out an erratum notice. I remember when I was–I hadn't been Reporter very long–and I got a telephone call from the Solicitor of the Interior Department and he said, "Mr. Putzel, I wish to point out an error in the United States Reports!" My heart sank. Well, I knew this moment was going to come sooner or later. And here it was. What had I done wrong? Well, fortunately, my equanimity was restored when he said, well this opinion occurred in, and then he gave me the volume of the U. S. Reports, it was well over 100 years before, so I felt a little better. But since that time, I must confess there are plenty of bloopers that I have made myself.

Mr. Baier:

Plenty of errata in the Putzel volumes of the United States Reports. Would you prefer that the volume show your name? I suppose that's a question the answer to which is obvious.

Mr. Putzel:

I suppose vanity would say "Wouldn't that be nice." I know my wife thinks that would be a splendid idea. But I am afraid that the custom is now too well established to permit that. Starting with Mr. Otto, the Reports, following the language of an act of Congress, are called "United States Reports" and they are cited ________ U.S. ________ and not by the Reporters' names.[23] But we do adhere to the tradition of citing reports before Otto, that is ending with Wallace, with the name of the Reporter, either in its full spelling or abbreviated.[24] The Reports start with, curiously enough, 2 Dallas–it would be 2 U.S. if we cited it that way. I say "curiously" because the first volume of Dallas has no reports of opinions of the United States Supreme Court.

Mr. Baier:

Do you listen to the oral arguments?

Mr. Putzel:

I do on occasion. Unfortunately the job of being Reporter of Decisions is a demanding one and I have to stick pretty close to my knitting. But if a big argument comes along, one with a renowned advocate, or the issues in a case are of commanding importance I do slip off and go to the courtroom. I have a place reserved there for me, so it's always there when I want to use it. And I enjoy listening to arguments. I remember hearing Justice Harlan once discuss a question that was asked of him, how valuable oral arguments are. He said they were helpful to him.[25] I've read, I can't recall who the Justice was who said that he didn't really pay much attention to oral arguments. The briefs were there and not much was added. I think some indication that something is added comes from the transcript of oral argument which is available after any case is argued, because from that transcript you will see a Justice quoting–now it may be true that he is just embellishing a point that he would have reached anyhow–but from that it does appear that oral argument in certain instances helps a Justice.

Mr. Baier:

Do you recall any memorable oral arguments that you have heard in your fourteen years' experience?

Mr. Putzel:

Well, I've heard many that were memorable. Curiously, in some of the great cases, like the Nixon tapes case, for example, or even the Bakke case, sometimes the touted cases, the ones you read about in the press so much, are not the ones that are best argued. Sometimes fortunately they are. But, for example, in the Nixon tapes case I thought, and this is my view only, that the young lawyer, Phillip Lacovara, of all the eminent people who were arguing that case, made the most persuasive and eloquent argument. He was not many years out of law school, or out of the Solicitor General's office. One of my favorite advocates is Archibald Cox. It's always a delight to listen to him argue a case before the Court. And, of course, he argued the Bakke case. It's a great art, it's one that I certainly don't have and very few people do. One very good Supreme Court advocate I know of is Frederick Bernays Wiener, who used to be in the Solicitor General's office and he wrote a book on how to present an appeal in the Supreme Court–a very good book,[26] by the way, and he was a master advocate and to this day if he argues a case before the court he wears the cutaway that was de rigeur and still is used by the people in the Solicitor General's office. I have a cutaway too–my predecessor wore his all the time in the courtroom. When I go to the courtroom I wear it for a very ceremonial occasion, or memorial service, or if I go to listen as I do with the Court to the State of the Union message in the House of Representatives, I wear the cutaway then or perhaps to a funeral or a memorial service. But some of the old timers still use it when they are arguing cases before the Court.

Mr. Baier:

Do you have a few favorite writers, either past or present, on the Supreme Court?

Mr. Putzel:

I'm glad that you included past as well as present because it's much easier to answer that question.

Yes, Oliver Wendell Holmes, particularly in his brief dissenting opinions, wrote some real jewels and usually did it in the space of maybe two pages; and he was a very incisive writer.[27] Another writer I find very appealing, though very often I disagreed with his opinions, was Jackson. And Jackson had a very, very nice touch. He expressed himself concisely and sometimes in a way that is difficult to forget. He once remarked in, I think it was Brown v. Allen,[28] that the Supreme Court wasn't final because it was infallible, but was in-fallible because it was final. And -if you stop to think about that, that says quite a lot.

Mr. Baier:

How many years were you on the Court as Reporter with Chief Justice Earl Warren?

Mr. Putzel:

Well, a little less than half the time I've been there and I must, now that you mentioned him– maybe this is a little off the beaten path–but the practice of note-writing from the bench has intrigued visitors. They see pages go to a Justice and hand a note to somebody, often in the wives' box or maybe it's an incoming note to a Justice. But during the period when Warren was the Chief Justice, it was almost this time of year, many years ago, it was in October, somebody happened to notice that a great many notes were coming at almost regular intervals to the Chief Justice and the messenger would come from behind the velvet curtains and hand the notes to the Chief Justice. He would smile or frown or show no emotion and then another note would come and people began to wonder what these notes could be about. Well, it wasn't until some years later that I found out that the world series was going on. He was a great baseball fan, great sports fan of all kinds, and at the end of each inning the messenger was delivering to the bench the box score at the end of the inning.

Mr. Baier:

Let's hope the final note produced a smile.

Mr. Putzel:

I hope so.

Mr. Bair:

What kind of man was Earl Warren?

Mr. Putzel:

Oh, he was a marvelous person. I have a curious feeling: the other night I saw a video tape of an interview by Abram Sachar, the President of Brandeis University, or Chancellor, whatever he is called, interviewed Warren in a very rare interview that–I don't think Warren had ever given an interview like that before, or quite like that–and it evoked a good many memories. He was at that point, it was about two years before he died, and he had long since retired, but certain sparks were repeated in my memory of the Chief Justice as he used to be, and he was a marvelous person. And it's interesting to see how video tape can perpetuate a memory by evoking recollections from the tone of voice and facial expressions of people who have, passed on. And so I have mixed feelings. I think mostly feelings though of the privilege I felt in having known him.

Mr. Baier:

Is it a privilege to work inside the Court, day to day?

Mr. Putzel:

Oh, it is. There's no question about it. People can be cynical but I think the feeling of both exhilaration and pride that I had when I first came to the Court have not in any way dimmed since. And I still, I still walk down the marble halls thinking how lucky I have been to be there.

Endnotes

1. "All is changed, and not for the better. We no longer see the reporter sitting in court, noting the oral argument and colloquies between judge and counsel, which in the older reports, and in those of England sometimes even now, are so instructive and enable the reader to understand much that he might otherwise overlook." Henry Budd, "Reports and Some Reporters," 47 Am. L. Rev. 481, 514 (1913). Compare the remark of Chief Justice John Marshall in 1830 to Richard Peters, then Reporter of Decisions, who had inquired whether he should omit the arguments of counsel from the reports so as to save space. Responded the great Chief Justice: "I believe we all think that the arguments at the bar ought, at least in substance, to appear in the Reports. They certainly contribute very much to explain the points really decided by the Court." John Marshall to Richard Peters, March 22, 1830, in 3 Peters iv.

  1. WaIter Wyatt, Reporter of Decisions, 1945 to 1963 (326 U. S. to 374 U. S.).
  2. Most lawyers think that it is a very simple matter to write a good headnote or a syllabus. It is, if one knows how. But experience has shown that while every lawyer deems himself capable, but a few can actually perform the work. It is a work requiring special and peculiar skill. Practice alone in the absence of the particular ability, will not develop a good writer." Rosbrook, "The Art of Judicial Reporting," 10 CornelI L. Q. 103, 114 (1925).
  3. Henry C. Lind, now Reporter of Decisions, who succeeded Mr. Putzel by appointment of the Court, effective February 25, 1979.
  4. 39 Va. L. Rev 883 (1953). Compare "some Curious Headnotes." 108 The Law Times 467(1900).
  5. 399 U. 5. 392 (1970).
  6. "And, in every part of his work, the reporter should never forget that the brevity, terseness, and the most careful choice of words, are his highest duties." "Wallace's Reports," 1 Am. L. Rev. 229, 230(1867). In reviewing the first three volumes of Wallace, the editors of the American Law Review concluded that Mr. Wallace had failed miserably as a Reporter: "But his elaborate and bombastic statements of fact prove that he radically misconceives his office. He takes great pains to do what is utterly unfit to be done in a volume of reports. Before he can begin to learn his duties, he has so much to unlearn, he must undergo such intellectual revolution, that we despair of him. . . . To insure us against such reports in the future nothing less will suffice, than that Mr. Wallace should cease to be reporter. If this cannot be, then we demand in behalf of the profession, an entire change in his theory and practice of reporting. He must be more brief, more accurate, and more modest." Id. at 237. Wallace did not resign, however. He held on until 1876, completing 22 volumes of reports during his twelve years as Reporter of Decisions. In taking note of Wallace's resignation, the editors of the American Law Review continued to fuss at him: "Still, the experience of twelve years, so far from making him a good reporter, has rather tended to demonstrate his unfitness for the task of reporter of judicial decisions; and it was with a feeling far from regret that we heard of his resignation." 10 Am. L. Rev. 357 (1876).
  7. Once in a great while a Justice insists on having the Reporter headnote what is said in the footnotes. This is all wrong, says Mr. Putzel, who opposed the practice, but to no avail. "Two of the rare instances in which syllabi were based in part on footnotes are: Head v. New Mexico Board, 347 U.S. 424(1963) (see numbered item 4 of syllabus), and United States v. Gaddis, 424 U. 5. 544(1976) (see numbered item 3)." Henry Putzel, Jr. to Paul R. Baler, March 29, 1977. Doubtless Mr. Putzel would agree with De Quincey's comment, in his essay on style, that "such an excrescence as a note argues that the sentence to which it is attached has not received the benefit of a full development for the conception involved .. Representative Essays on the Theory of Style 66 (Brewster, ed., 1928). Compare Justice Frankfurter's comment on the celebrated Carolene Products footnote, United States v. Carolene Products Co., 304 U. 5. 144, 152-53 n.4, which, incidentally, was not headnoted, as follows: "A footnote hardly seems to be an appropriate way of announcing a new constitutional doctrine. . ." Kovacsv. Cooper, 366 U. 5. 77, 90-91 (1949) (concurring opinion).
  8. Charles Henry Butler, the Reporter of Decisions from 1902 to 1915 (242-321 U.S.), in his wonderful book A Century at the Bar of the Supreme Court of the United States 79 (1942) exclaimed that the headnotes "just grow as Topsy did."
  9. "The headnote is a part of the case and should be as reliable as the opinion from whence it sprang. It is the duty then of each judge–a duty which is conscientiously performed by most judges–to examine the headnote with care and suggest such changes, if any, that should be made to make it truly represent the rule announced and applied in the opinion." Rosbrook, "The Art of Judicial Reporting," 10 Cornell L. Q. 103, 119 (1925). But compare the remark of one Supreme Court Justice to Charles Henry Butler: "If the Court is not to be bound by the headnote, as declared in several opinions, no member of the Court should be in any way connected with its promulgation, as it is exclusively the expression of the ideas of the Reporter on what the opinion holds and the Court decides." A Century at the Bar of the Supreme Court of the United States 80.
  10. It has not always been so. Henry Budd in his delightful article "Reports and Some Reporters," 47 Am. L. Rev. 481, 491-92 (1913), tells of one reporter who, believe it or not, ignored what the court said in its opinion in preparing his syllabus: "Bravery of another kind has been shown by an American reporter for, some years ago, in reading a case I found that the syllabus contradicted the opinion of the Court. This was explained by a note to the following effect. The reporter cannot convince himself that the Court intended to overthrow the law as settled by a long course of decisions which are adverse to this opinion, he has therefore stated the law as it is."
  11. For the true story of the Ohio syllabus rule, see the Appendix to this article.
  12. For details as to the legal status of the headnote in these and other states, see the Appendix.
  13. The Government, relying on the second paragraph in the headnote to Hawley v. Diller, 178 U. S. 476, claimed that the Detroit Lumber Company was not a good faith purchaser of certain timber lands. But the Government got nowhere. Reliance on the headnote was wrong, said Justice Brewer, for several reasons: "[un the first place, the headnote is not the work of the court, nor does it state its decision– though a different rule it is true, is prescribed by statute in some States. It is simply the work of the reporter, gives his understanding of the decision, and is prepared for the convenience of the profession in examination of the reports." United States v. Detroit Lumber Co., 200 U. 5. 321, 337 (1906). But this was not all. It seems that J. C. Bancroft Davis, who reported Hawley v. Diller during the October Term 1899, committed false report: "And finally," said Justice Brewer, "the headnote is a misinterpretation of the scope of the decision."
  14. It's interesting to note that Charles Henry Butler, the Reporter of Decisions when the Detroit Lumber Co. case came down, promptly made a headnote out of the proposition that headnotes don't count. See paragraph 4 of Mr. Butler's syllabus, 200 U. S. at 322.

    A few years later another lawyer made the grave error of trying to get Holmes's ear on the thin reed of a Louisiana headnote. To which 0. W. H. responded: "Reliance also is placed upon the head note of the decision below . . . But the head note is given no special force by statute or rule of court, as in some States. It inaccurately represents the reasoning of the judgment. In 129 Louisiana it is said to have been made by the court. However, that may be, we look to the opinion for the original and authentic statement of the grounds of decision." Burbank v. Ernst, 232 U. S. 162, 165 (1914). It should be noted that Mr. Butler, true to his calling, promptly made another headnote out of this discussion. See paragraph 3 of the syllabus to Burbank v. Ernst, 232 U. S. at 162-63. And when the question later arose in Louisiana, Justice Holmes's view of the importance of Louisiana headnotes was adopted by the Louisiana Supreme Court. See Cabral v. Victor & Provost, 181 La. 139, 158 So. 821 (1934).

    Felix Frankfurter, who followed Holmes from Harvard to the Court, also followed Holmes on Headnotes. But F. F., never at a loss for words, of course insisted on his own pen. And so in his dissenting treatise in Bisso v. Inland Waterways Corp., 349 U. 5. 85, 100(1955), Justice Frankfurter, speaking of certain "time-honored rules for reading cases," professed that "cases hold only what they decide, not what slipshod or ignorant headnote writers state them to decide; that the decisions are one thing, gratuitous remarks another. A stew may be a delicious dish. But a stew is not to be made in law by throwing together indiscriminately decision and dictum. . ." What else is there to say?

  15. The word "parameter" has blighted the pages of the United States Reports 23 times since 1938, or so says the LEXIS machine. The first offender, who had better go unnamed, spoke of the "constitutional parameters of the copyright power" on October 19, 1971. See Lee v. Runge, 404 U. 5. 887, 888. The latest offense occurred in Gertz v. Robert Welch, Inc., 418 U. 5. 323, 355 (June 25, 1974), when one of the Justices talked about the "parameters of a 'negligence' doctrine as applied to the news media."
  16. In his opinion in Ballew v. Georgia rejecting a jury of less than six in all nonpetty criminal cases, Mr. Justice Blackmun noted that "only three States, Georgia, Louisiana, and Virginia, have reduced the size of juries in certain nonpetty criminal cases to five." Slip Opinion at 21. But as reported in the Preliminary Print, Justice Blackmun's opinion makes no mention of Louisiana: "Perhaps this explains why only two States, Georgia and Virginia, have reduced the size of juries in certain nonpetty criminal cases to five." 435 U. S. at 244. And so it goes thanks to the Reporter and his helpers.
  17. "So, also, a good reporter will watch the opinion carefully for grammatical errors. There is nothing sacred about opinions. They are written by human beings, possessing human frailties, whose work is not necessarily perfect, and, indeed, in many instances it is far from perfect. Every judge is grateful to a reporter who points out actual errors in English. Judge Story in a letter to Mr. Richard Peters, the reporter of the Supreme Court of the United States said:
  18. "'As to the correction of verbal and grammatical errors in an opinion, I can only say for myself, that I have always been grateful for the kindness of any reporter of my opinions, for doing me this favor. Verbal and grammatical errors will occasionally occur in the most accurate writers. I have found some in my own manuscript opinions, after careful perusual, and have not detected them till I saw them in print. I think it would be a disgrace to all concerned, to copy gross material and verbal errors and misrecitals, because everyone must know that they would at once be corrected if seen. They mar the sense, and they pain the author. So the occasional change of the collocation of a word often improves and clears the sense. If a reporter do no more than acts of this sort, removing mere blemishes, he does all Judges a great favor. I do not believe any good reporter in England or America ever hesitated to do so. This is my opinion. Other persons may think differently from me, but I have never supposed this is not a part of the appropriate discretion of a fair and accomplished reporter.' "Rosbrook, "The Art of Judicial Reporting," 10 Cornell L. Q. 103, 123 (1925).

  19. Ernest Knaebel, Reporter of Decisions, 1916 to 1943 (242 U. S. to 321 U. S.).
  20. 245 U. 5. 154 (1917).
  21. "Exactness to the minutest detail is likely to become an obsession with those who do this kind of work." Rosbrook, "The Art of Judicial Reporting," 10 Cornell L. Q. 103, 122 (1925).
  22. "With all respect to my dissenting Brethren, I deem little short of frivolous the contention that the Equal Protection Clause prohibits enforcement of marital obligations, in either the mandatory or the suppletive form." Labine v. Vincent, 401 U. 5. 532, 540 (1971) (Harlan, J., concurring).
  23. It turns out that "suppletive" is indeed a civil law term. The word means "permissive," in the sense that a legal rule applies only if those affected by it have not excluded its application by private agreement. "Statutory rules may be either suppletive or imperative. A suppletive rule applies only if those affected by it have not excluded its application. On the other hand, rooted in public policy considerations, an imperative rule is applied without regard to the intention of the individuals concerned." Badon's Employment, Inc. v. Smith, 359 So. 2d 1284,1286 (La. 1978). The distinction between suppletive anti mandatory rules is recognized in Article 12 of the Louisiana Civil Code and in contemporary civil law systems throughout the world. See generally, Yiannopoulos, Louisiana Civil Law System § 42 (1977).
  24. In taking note of the publication of the first two volumes of Otto's reports, the editors of the American Law Review observed that: "These two volumes are entitled 'United States Reports;' and, although they are the first of a new series, they are numbered volumes 91 and 92. We believe that this title and arrangement were adopted in accordance with the wishes of the Court, instead of designating the volumes, as heretofore, by the name of the reporter. . ." Book Notice, 11 Am. L. Rev. 335, 337 (1877).
  25. Mr. Justice Frankfurter, as the price of a law review contribution, once required the lads of the Harvard Law Review, who had devised a new schoolboy scheme for citing cases before Otto (e.g., Marbury v. Madison, 5 U. 5. (1 Cranch) 137), to adhere to the traditional form of citation by the name of the reporter alone. The Justice rebuked the editors for making the change, insisting on the "need for preserving ancient traditions." "With the Editors," 69 Harv. L. Rev. (Dec. 1955, p. v.). One of Justice Frankfurter's best students, Colonel Frederick Bernays Wiener, "whose spirit is lineal to Plowden, Wheaton, and Wallace," Yearbook 1976 at 71, also insists on citing cases before Otto in the traditional form. Why be so fussy about this? Because, as the Colonel himself explains it: "Citations to such cases other than by the name of the reporter alone mark the brief-writer as a legal illiterate or, at the very least, as one not very well brought up or educated." Briefing and Arguing Federal Appeals 228 (1967).
  26. "The view is widespread that when a court comes to the hard business of decision, it is the briefs, and not the oral argument, which count. I think that view is a greatly mistaken one. . . . I think that the lawyer who depreciates the oral argument as an effective instrument of appellate advocacy, and stakes all on his brief, is making a great mistake." Harlan, "What Part Does the Oral Argument Play in the Conduct of an Appeal," 41 Cornell L. Q. 6 (1955).
  27. Briefing and Arguing Federal Appeals (1967), first published as Effective Appellate Advocacy (1950), a book that was so popular it was literally stolen off library shelves.
  28. See, e.g., Lochner v. New York, 198 U. 5. 45, 74 (1905) (Holmes, J. dissenting).
  29. 344 U. 5. 443, 540 (1953) (Jackson, J. concurring) ("We are not final because we are infallible, but we are infallible only because we are final.").


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